ATTORNEY GENERAL OF CANADA Applicant v. MUNSEE-DELAWARE NATION, 2015 FC 366

Date: 20150323 Dockets: T-1043-13 T-1030-13 Citation: 2015 FC 366 Ottawa, Ontario, March 23, 2015 PRESENT: The Honourable Mr. Justice LeBlanc Docket: T-1043-13 BETWEEN: ATTORNEY GENERAL OF CANADA Applicant and MUNSEE-DELAWARE NATION AND CRYSTAL FLEWELLING Respondents Docket: T-1030-13 AND BETWEEN: CRYSTAL FLEWELLING Applicant and MUNSEE-DELAWARE NATION THE ATTORNEY GENERAL OF CANADA THE ATTORNEY GENERAL OF ONTARIO Respondents JUDGMENT AND REASONS I.

Introduction [ 1 ] These two related cases, heard together, stem from a long and rather bitter labour dispute between the Respondent, Munsee- Delaware Nation (the Nation), and the Applicant, Crystal Flewelling. Ms Flewelling claims her employment was unjustly terminated by the Nation. She filed a complaint for unjust dismissal under

section 240 of the Canada Labour Code , RSC 1985, c. L-2 (the Code) resulting in an adjudicator being appointed under

section 242 of the Code (the Adjudicator). [ 2 ] On May 10, 2013, when the six-year long proceedings before the Adjudicator were near completion, the Adjudicator, in the wake of the Supreme Court of Canada decision in NIL/TU,O Child and Family Services Society v. B.C.

Government and Service Employees’ Union, 2010 SCC 45 , [2010] 2 SCR 696 ( NIL/TU,O ), ruled that he had no jurisdiction to consider Ms Flewelling’s complaint on the ground that her employment was provincially regulated. [ 3 ] The issue brought before this Court, by both Ms Flewelling and the Attorney General of Canada, is whether the Adjudicator erred in concluding as he did. For the reasons that follow, I find that the Code applies to Ms Flewelling’s complaint and that, as a result, both the Attorney General and Ms Flewelling’s judicial review applications shall be granted. II. Background A.

Ms Flewelling’s Complaint [ 4 ] Ms Flewelling is a member of the Nation. She was hired by the Nation in September 2001 to work in its Administration offices. This was at the time Co-Management had been imposed by the Department of Aboriginal Affairs and Northern Development Canada as a result of the Nation’s failure to meet its obligations regarding the management of its financial affairs. Over time, her duties evolved from those of a data entry/file clerk to those of a housing/finance clerk.

Her employment was terminated in the spring of 2006. [ 5 ] The Nation is an Indian Band as defined under the Indian Act , RSC 1985, c I-5. Reserve lands, located in southern Ontario, were set apart by the Crown for its use and benefit. The Nation’s population consists of approximately 600 people, with a little less than 200 members living on the reserve. It is governed by a Chief and Council elected in accordance with the Nation’s Custom Election Code. [ 6 ] In May 2006, Ms Flewelling filed a complaint of unjust dismissal under the Code .

At the outset of the complaint process, the Nation took the position that it was an Indian Band recognised under the Indian Act and that its labour relations with its employees were governed by the Code. As the complaint could not be settled by an inspector appointed under section 241(2) of the Code, the matter was referred to the Adjudicator. [ 7 ] On January 28, 2008, the Adjudicator issued an award dismissing two preliminary non-constitutional, jurisdictional

objections, raised by the Nation. The proceedings before the Adjudicator were then at a standstill for three years as the parties wereawaiting the resolution of related criminal charges laid against Ms Flewelling. The adjudication proceedings resumed in the fall of 2011,at which point the Nation advised that it was no longer asserting cause for Ms Flewelling’s dismissal.

As a result, the amount ofdamages payable to Ms Flewelling remained the only issue to be determined. [8] In the fall of 2012, when the hearings on this issue were well under way, the Nation asserted that Ms Flewelling’semployment was regulated by the labour laws of Ontario rather than the Code and that, as a result, the Adjudicator had no jurisdiction tohear and determine her complaint for unjust dismissal. B. The Adjudicator’s Decision [9] On May 10, 2013, the Adjudicator ruled in favour of the Nation.

He first noted that although the presumption, in Canada, isthat employment relationships are regulated by the provinces, it had been widely accepted, as evidenced by the Nation’s position at theoutset of the complaint proceedings, that the employment relationships of employees of First Nations were regulated by the Federalgovernment, given Parliament’s authority over “Indians and Lands reserved for Indians” under subsection 91(24) of the Constitution Act,1867. [10] However, he agreed with the Nation’s assertion that the Supreme Court of Canada decision in NIL/TU,O changed the legallandscape in that regard by holding that the presumption that employment relationships are regulated by the provinces applied even whenthe employer was a First Nation.

This meant, according to the Adjudicator, that when determining which of the provincial or federallabour laws apply to a given employment relationship, the fundamental nature of the inquiry was the same for First Nation employers asfor any other federal heads of power. [11] The Adjudicator then proceeded with the first step of that inquiry, the “functional test”, and considered the nature, operationsand habitual activities of the Nation in order to determine whether the Nation qualified as a “federal undertaking” under the Code.

Heheld in this regard that the Nation’s activities were mostly concerned with policing, welfare, health, education and bingo and that thoseactivities were all provincially regulated. Turning to the work performed by Ms Flewelling, the Adjudicator found that she was doinginternal accounting and kept the Nation’s financial records for all its operations, including for the policing, welfare, health, education andbingo hall functions.

He concluded that there was nothing in the work that Ms Flewelling was performing that was federally regulated. [12] Having found that the work performed by Nation’s employees in general, and by Ms Flewelling in particular, was of a typewhich is generally seen as provincially regulated, the Adjudicator concluded he had no jurisdiction to determine Ms Flewellingcomplaint.

As a result, he held that there was no need to proceed with the second stage of the inquiry and consider whether provincialregulation of the Nation’s labour relations would impair the core of the federal head of power over “Indians and Lands reserved forIndians.” C. The Complaint’s Statutory Framework [13] The complaint filed by Ms Flewelling was brought under

Part III of the Code which applies, according to

section 167 of theCode, to “employment in or in connection with the operation of any federal work, undertaking or business”.

Section 2 of the Codedefines “federal work, undertaking or business” as, inter alia, “any work, undertaking or business that is within the legislative authorityof Parliament.” [14] As indicated previously, the authority to legislate over “Indians and Lands reserved for Indians” belongs to Parliament. III.

Issue and Standard of Review [15] The issue to be decided is whether the Adjudicator erred in concluding that the employment relationship between MsFlewelling and the Nation is governed by provincial law rather than the Code. [16] The appropriate standard of review applicable to constitutional questions relating, as is the case here, to division of powersissues is correctness (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, at para 58).

The parties do not dispute this althoughthe Nation contends, correctly in my view, that the Adjudicator’s findings regarding the underlying facts to the issue at hand, such as thecharacterization of the employment, are owed deference and are to be reviewed, as a result, on the standard of reasonableness(Commissionaires (Great Lakes) v Dawson, 2011 FC 717, 391 FTR 216; Fox Lake Cree Nation v Anderson, 2013 FC 1276, at para 23). IV. Analysis A.

Constitutional Jurisdiction over Labour Relations [17] The Constitution Act, 1867 is silent as to whether the provincial legislatures or Parliament has jurisdiction over labourrelations. However, Canadian courts have, historically, recognized that labour relations are presumptively of provincial jurisdiction - as amatter falling within the provinces’ Property and Civil Rights head of power - and that the federal government has jurisdiction over thatsubject matter only by way of exception.

That is, when the entity for which labour relations are at issue is a “federal work, undertakingor business” (Toronto Electric Commissioners v Snider, (UK JCPC), [1925] AC 396, [1925] JCJ No. 1 (QL); NorthernTelecom Ltd. v Communications Workers of Canada, (SCC), [1980] 1 SCR 115; Four B Manufacturing Limited v UnionGarment Workers of America, (SCC), [1980] 1 SCR 1031 (Four B); Consolidated Fastfrate Inc. v Western CanadaCouncil of Teamsters, [2009] 3 SCR 407, 2009 SCC 53; NIL/TU,O, above).

[18] To determine whether a work, undertaking or business’ labour relations is federally or provincially regulated involves thefollowing two-step inquiry: a. The first step – also called the “functional test” - requires the Court to inquire into the nature, habitual activities and dailyoperations of the entity in question in order to determine whether it constitutes a federal work, undertaking or business; and b.

If the functional test is inconclusive, then the Court must inquire into whether provincial regulation of that entity’s labourrelations would impair the core of the federal head of power (Four B, above at p. 1045; NIL/TU,O, at para 6). [19] This approach, which is distinct from the one used to determine whether a particular piece of legislation falls within thelegislative authority of Parliament or the provinces (NIL/TU,O at para 12), has, for the last 85 years, been “consistently endorsed andapplied” by the Supreme Court of Canada (NIL/TU,O, at para 3). B.

The Position of the Parties [20] The Attorney General claims the Federal Court of Appeal’s decision in Francis v Canada Labour Relations Board (FCA), [1981] 1 FC 225 (FCA), rev’d P.S.A. (Can) v Francis [1982] 2 SCR 71 (Francis) is dispositive of the matter andwas binding on the Adjudicator.

It contends that Francis establishes that Indian bands and band councils, as they derive theirgovernance authority from the Indian Act and other federal legislation, such as the First Nation Fiscal Management Act (SC 2005, c 9),are federal undertakings for the purposes of labour relations when they are engaged in their governance function and in the generaladministration of band affairs and reserves, including their financial affairs. [21] The Attorney General further contends that Francis is distinguishable from cases like NIL/TU,O where the employer or entityin question is not an Indian band but rather a distinct and separate legal entity, or from cases where the entity, although not, legallyspeaking, a separately incorporated body, is a separate and distinct operation from the Indian Band or Council. [22] Ms Flewelling adopts a similar view and stresses the fact that, contrary to NIL/TU,O, the Nation is not (

i) a provinciallyincorporated body; (ii) a provincial corporation whose sole purpose is to provide child welfare services; (iii) a corporation subject toprovincial legislation; (iv) a corporation whose operations are regulated exclusively by the province; or (

v) an entity over which theprovince retains ultimate control regarding decision-making over its activities. [23] She claims that the essential function of the Nation’s Band Council is not to support police work, health care services,education, and employment in the Bingo Hall or to administer the welfare program. Rather, it is to protect the status, rights andprivileges of First Nation’s persons, which is an integral part of federal jurisdiction over Indians and Lands reserved for Indians.

Shesays that her work with the Nation was not specific to any particular discrete program but was rather related to the Nation’s financialaffairs and to the management of housing on the Nation’s land. All her work, according to her, was ultimately under the control of theNation’s Chief and Council and allowed the Nation to carry out its governance mandate and to comply with its obligations under theIndian Act and other related federal legislation. [24] The Nation disagrees.

It claims that NIL/TU,O does not distinguish between an employer which is a First Nation and onewhich is a corporation formed by one or more First Nations nor does it hold that a First Nation’s activities can only be federal in nature. Rather, it contends that NIL/TU,O confirms that First Nations, like any other employers, should have its labour relations characterizedunder the functional test and not some other test. According to the Nation, this test is about what work activity is involved, not aboutwho performs the work or for whom it is performed.

It submits that, to the extent Francis applied some other test, it has been overruledby NIL/TU,O. [25] The Nation further claims that, as a First Nation, it has an inherent authority to govern, recognized within the CanadianConstitution. It says in this regard that it is governed by a Chief and a Council which are elected in accordance with the Nation’sCustom Code and which are not organized or regulated by the Indian Act or its regulations. It is no longer correct, according to theNation, to describe a First Nation as a creature of statute and First Nation Councils as creatures of the Indian Act.

The Nation contendsthat even if First Nations were organized under the Indian Act, they would be so organized subject to

section 88 of that Act whichextends the application of provincial laws of general application, like provincial labour relations laws, to Aboriginal people and theirlands. [26] Here, it claims that Ms Flewelling’s habitual work activities – accounting and bookkeeping – are provincially regulated andonly have, in any event, an insignificant portion of federal content. It submits that the fact that these activities were performed on behalfof a First Nation or for the benefit of Aboriginal people is irrelevant.

It says that the Adjudicator was therefore correct in finding that thelabour relations over these activities were provincially regulated and that he was without jurisdiction to entertain Ms Flewelling’scomplaint under the Code. C. Francis is still good law and was binding on the Adjudicator [27] This issue in this case turns on whether Frances is still good law in light of NIL/TU,O. If it is, then it is binding on both theAdjudicator and this Court, with the result that the Adjudicator’s ruling that he is without jurisdiction to consider Ms Flewelling’scomplaint under the Code must be set aside.

If it is no longer good law, then that ruling must stand. [28] Francis dealt with the certification, under the Code, of the Public Service Alliance of Canada as the bargaining agent for agroup of employees of the St-Regis Indian Band (the Employees) engaged, for the most part, in “education administration, theadministration of Indian lands and estate, the administration of welfare, the administration of housing, school administration, publicworks, the administration of an old age home, maintenance of roads, maintenance of schools, maintenance of water and sanitationservices, and garbage collection” (Francis, at para 17).

[29] Applying the teachings of Four B, Justice Heald (Justice Le Dain concurring on that point) characterized the function of theEmployees generally as being “almost entirely concerned with the administration of the St-Regis Band of Indians”, as being“governmental in nature” and as coming under “the jurisdiction of the Indian Act” (Francis, at para 17). [30] Justice Heald then proceeded to a detailed analysis of the provisions of the Indian Act relating to the involvement of an IndianBand and its Council to which that Act applies in the administration of the affairs of the Band.

It is useful here to reproduce thatanalysis: (…) It is also instructive to peruse the various provisions of the Indian Act to determine the extent to which an Indian band and itscouncil are involved in the administration of the affairs of an Indian band to which, as is the case here, the Indian Act applies.

Section 20states that no Indian is lawfully in possession of land in a reserve unless such possession is allotted to him by the band council and thenapproved by the Minister.

Section 24 enables an Indian lawfully in possession of reserve lands to transfer that right to possession toanother band member or to the band itself with the Minister's approval.

Section 25 provides that, in certain circumstances, an Indian'sright to possession of reserve lands shall revert to the band.

Section 34 imposes a duty upon a band to maintain the roads, bridges, ditchesand fences within the reserve occupied by that band.

Section 37 provides that reserve lands shall not be sold, alienated, leased orotherwise disposed of unless they have been surrendered to the Crown by the band.

Section 39 details the procedure to be followed by aband in making such surrender.

Section 58 enables the Minister, with the consent of the band council, to improve, cultivate or leaseuncultivated or unused reserve lands. Under this section, the Minister is empowered, with the consent of the band council, to dispose ofsand, gravel, clay and other non-metallic substances upon or under reserve lands.

Section 59 empowers the Minister, with the consent ofthe band council, to reduce or adjust the amount payable to the Crown in respect of the sale, lease or other disposition of surrenderedreserve lands and furthermore, to reduce or adjust the amount payable to the band by an Indian in respect of a loan made to the Indianfrom band funds.

Section 60 empowers the Governor in Council to grand to a band, at the request of that band, the right to exercise suchcontrol and management over reserve lands as the Governor in Council considers desirable. Counsel advised us that no such Order inCouncil subsists with respect to the St. Regis Indian Band. Sections 61 to 69 inclusive of the Act deal with the management of Indianmoneys.

Section 64 empowers the Minister, with the consent of the band council, to expend capital moneys of the band for variouspurposes: to distribute per capita to band members portions of the proceeds of sale of surrendered lands; for the construction andmaintenance of roads, bridges, ditches, water courses and outer boundary fences; to purchase land for use by the band as a reserve or anaddition to a reserve; to purchase for the band the interest of a band member in reserve lands; to purchase livestock and farm machineryfor the band; to construct and maintain permanent improvements on the reserve; to make loans to band members; to meet expensesnecessarily incidental to the management of reserve lands and band property; to construct houses for band members and to make loans toband members for building purposes; and generally, for any other purpose for the benefit of the band, in the opinion of the Minister.Section 66 empowers the Minister, with the consent of the band council to expend revenue moneys of the band for a number of purposes.Section 69 empowers the Governor in Council to allow a band to control, manage and expend in whole or in

part its revenue moneys.Regulations pursuant to

section 69 have been passed by the Governor in Council and apply to the St. Regis Indian Band4. TheseRegulations empower this Band, along with a large number of other bands in Canada to control, manage and expend its revenue moneysin whole or in part subject to the detailed provisions of the Regulations providing for bank accounts, signing officers, appointment ofauditors, etc. Sections 74 to 80 inclusive provide for the elections of chiefs and band councils. Sections 81 to 86 inclusive set out the powers of the band council.

Section 81 empowers a band council to make by-laws for a largenumber of purposes: for the health of reserve residents; traffic regulation; observance of law and order; establishment of animal pounds;construction and maintenance of water courses, roads, bridges, ditches, fences and other local works; regulation of types of business tobe carried on; building restrictions; allotment of reserve lands to members; noxious weed control; regulating and controlling watersupplies; regulating and controlling sports, races, athletic contests and other amusements; and regulation of hawkers and peddlers, etc. (Francis, at paras 17-18) [31] Based on the powers conferred on the Band and its Council in the Indian Act and the evidence of the exercise of these powersby the Band and its Council, Justice Heald was satisfied that, contrary to Four B, which was concerned with the labour relations of fouraboriginal individuals conducting a commercial business on an Indian reserve, the Employees were “directly involved in activities relatedto Indian status” and that “the total administration of the Band [was] continuously concerned with the status and the rights and privilegesof the Band Indians” (St-Régis, at para 20).

Paraphrasing the majority’s reasons in Four B, he concluded that the labour relations inissue were “an integral part of primary federal jurisdiction over Indians or Lands reserved for the Indians” and were, as a result, comingunder federal legislative competence pursuant to section 91(24) of the Constitution Act 1867 (St-Régis, at para 20). [32] As the activities engaged in by the Employees and the Band were being discharged under the authority of the Indian Act,Justice Heald was then satisfied that the administration of the St-Regis Band was a federal “work, undertaking or business” within themeaning of section 108(1) of the Code, that Parliament had therefore occupied the field respecting the Band’s labour relations, and thatthe Public Service Alliance of Canada was, as a result, constitutionally entitled to seek certification as a bargaining agent for theEmployees under the Code (Francis, at para 22). [33] However, Justice Heald held that the St-Regis Band was not an “employer” within the meaning of the Code - that is a “personwho employs one or more employees” - as it was not a “person” under either the Code or the Indian Act.

As a result, he concluded thatthe Canada Labour Relations Board had acted without jurisdiction in purporting to certify the Alliance. Chief Justice Thurlow, who didnot come to a final conclusion on the issue of the constitutional applicability of the Code to the Employees and the St-Regis Band,concurred with Justice Heald on that point.

Justice Le Dain dissented. [34] Two years later, the Supreme Court of Canada overturned Justices Heald and Thurlow’s finding and held that the St-RegisBand Council could properly be considered an employer within the meaning of the Code on the ground that Band Councils werecreatures of the Indian Act, that they were given power to enact by-laws for many specific purposes which are similar to those coveredby the by-laws of a municipality and that they did, in fact, engage and pay employees to do work for them (Public Service Alliance ofCanada v St-Regis Indian Band, (SCC), [1982] 2 SCR 72). [35] The judgment of the Federal Court of Appeal in St Regis was rendered in the wake of – and in line with the analysis

framework dictated by - Four B which clearly rejected the notion that the functional test is “inappropriate and ought to be disregardedwhere legislative competence is conferred not in terms of physical objects, things or systems, but to persons or groups of persons such asIndians or aliens” (Four B, at page 1045).

As a result, the Federal Court of Appeal proceeded with its constitutional applicabilityanalysis on the basis of the functional test and, as required by that test, directed its attention to the nature of the work being performed bythe unit of employees in question and to the nature of the “business” or operation of a Band Council to which the Indian Act applies (StRegis, para 17). [36] Four B is the predecessor of NIL/TU,O when establishing whether labour relations in a First Nation employment context areto be governed by provincial or federal laws.

In this regard, nothing in NIL/TU,O points to the Four B’s principles being discarded,disregarded or discredited. To the contrary, the majority in NIL/TU,O often refers to the test of Four B as the one that should befollowed and applied (NIL/TU,O, at para 3, 15, 18, 23 and 40).

It also refers to Four B as being the case, together with NorthernTelecom, above, which sets out “most comprehensively” the legal test for determining the jurisdiction of labour relations on federalismgrounds (NIL/TU,O, at para 3). [37] NIL/TU,O reiterated that this legal test had to be used regardless of the specific head of federal power engaged in a particularcase, including, as stated in Four B, the power over “Indians and Lands reserved for Indians” (NIL/TU,O, at para 3).

Applying the FourB test to the circumstances of that case (NIL/TU,O, at para 23) – a certification case like Francis - the Supreme Court found that thelabour relations of the group of employees at issue fell under provincial jurisdiction. [38] However, these circumstances were somewhat different to those in Francis. From the outset, Madam Justice Abella, writingfor the majority, underlined the “unique institutional structure” of the employer (NIL/TU,O, at para 1).

This employer was a society - theNIL/TU,O Child and Family Services Society (the Society) – incorporated under British Columbia’s Society Act by a number of FirstNations located in that province, to establish a child welfare agency that would provide “culturally sensitive” services to the children andfamilies of those communities. The Society was regulated exclusively by the province and its employees exercised exclusivelyprovincial delegated authority under British Columbia’s Child, Family and Community Service Act (NIL/TU,O, at para 36). It wasfunded by both the province and the federal government.

This funding was the federal government’s sole involvement in the Society’sactivities (NIL/TU,O, at para 34 and 40). [39] Madam Justice Abella found that the Society’s distinctiveness as a child welfare organization for Aboriginal communities didnot take away “from its essential character as a child welfare agency that is in all respects regulated by the province” and concluded thatits function was “unquestionably a provincial one” (NIL/TU,O, at para 39). [40] To borrow the terms used by Madam Justice Abella in NIL/TU,O, I do not think it can be said, in the present case, that theemployer is an agency “that is in all respects regulated by the province”, that its function is “unquestionably a provincial one” and thatMs Flewelling exercised “exclusively provincial delegated authority” under a provincial legislation.

Here, the employer is a BandCouncil to which the Indian Act applies and Ms Flewelling was engaged in the general administration of the band’s affairs, including on-reserve housing and matters concerning Indian reserve lands. Her work activities were described by the Adjudicator as follows: The Complainant worked in the Employer’s finance department in the Nation’s office. She was the only employee in that departmentand so she did all the usual accounting duties.

She maintained the Employer’s financial records, including accounts payable, accountsreceivable, payroll, bank deposits and bank reconciliation. (Emphasis added) [41] The evidence before the Court shows that Ms Flewelling’s salary was paid out of federal monies received by the Nation;monies which consisted of the main share of the Nation’s funding. [42] According to St Regis, the business or operation of a Band Council is that of a local government deriving its authority fromthe Indian Act and the applicable regulations.

It has a “comprehensive responsibility of a local government nature” (St Regis, Justice LeDain, at para 27). It carries out governance functions through the employment of administrative employees. Ms Flewelling was one ofthose employees. [43] I agree with the Attorney General that the Adjudicator’s analysis is devoid of any consideration of the core functions ofIndian bands and Band Councils that formed part of the analysis in Francis.

His sole reliance on NIL/TU,O, which was concerned withthe labour relations of a separately incorporated and provincially regulated child welfare service and which had nothing to do with theday-to-day administrative functions integral to running -the affairs of an Indian Band, is a reviewable error. [44] As in this case, the St-Regis Band was engaged in education administration, in the administration of welfare and in thedelivery of healthcare in the form of the administration of an old age home.

The Adjudicator ruled that these activities were provinciallyregulated and that, therefore, nothing in the work performed by Ms Flewelling was of the type which would normally be federallyregulated. The fundamental nature of the “business” or operation of a Band and a Band Council, to which the Indian Act applies, asdepicted by the Federal Court of Appeal in Francis, is completely lost in that analysis. [45] I am not prepared to say that Francis was overruled by NIL/TU,O. The absence of any consideration of this crucial factor, is,in my view, fatal to the Adjudicator’s ruling.

In other words, based on Francis, the functional test is conclusive that the administration ofthe Nation’s Band is a federal undertaking within the meaning of the Code. [46] The Nation claims that NIL/TU,O implicitly overrules Francis: Notwithstanding this Court’s long-standing approach, a different line of authority has uniquely emerged when courts are dealing with s.91(24) (see Sappier v. Tobique Indian Band (Council) (1988), 87 N.R. 1 (F.C.A.); Qu’Appelle Indian Residential School Council v.Canada (Canadian Human Rights Tribunal), (FC), [1988] 2 F.C. 226 (T.D.), at p. 239; Sagkeeng Alcohol RehabCentre Inc. v.

Abraham, (FC), [1994] 3 F.C. 449 (T.D.), at pp. 459-60). This divergent analysis proceeds, contrary toFour B, directly to the question of whether the “core” of the head of power is impaired, without applying the functional test first. (…)

[Madame Justice Abella, para 19] [47] In my view, Francis is not listed as part of that “different line of authority” for a reason and that reason is that the functionaltest, as set out in Four B, was central to the Federal Court of Appeal’s approach and analysis to the question of the Code’s constitutionalapplicability to the labour relations issue at play. [48] The case of Communications, Energy and Paperworkers Union of Canada v Native Child and Family Services of Toronto,2010 SCC 46, [2010] 2 SCR 737, which was decided by the Supreme Court of Canada on the same day as NIL/TU,O, is not helpful tothe Nation either.

This case involved a very similar set of facts as NIL/TU,O as the employer in that case was an aboriginal children’s aidsociety that delivered services primarily to Indian and Metis families pursuant to Ontario’s Child and Family Services Act and anagreement with the Ontario government.

The Supreme Court essentially endorsed its decision in NIL/TU,O and affirmed the FederalCourt of Appeal decision where that Court found the links to federal jurisdiction over Indians in that case were even thinner than those inNIL/TU,O (Native Child and Family Services of Toronto v Communication, Energy and Paper workers Union of Canada, 2008 FCA338, at para 40).

Nowhere in these two decisions is there any indication that Francis is no longer good law. [49] Neither is the decision of my colleague, Justice Russel Zinn in Fox Lake Cree Nation v Anderson, 2013 FC 1276, an unjustdismissal matter - as in the present case - an indication that Francis has lost its precedential value, as contended by the Nation.

First, inaccordance with the stare decisis principle, only the Supreme Court of Canada or the Federal Court of Appeal itself can overrule thatdecision (R. v Henry, 2005 SCC 76, [2005] 3 SCR 609; Canada v Craig, 2012 SCC 43, [2012] 2 SCR 489; Martin v Canada (AttorneyGeneral), 2013 FCA 15, [2014] 3 FCR 117, at para 104). This has not occurred. Second, the First Nation in that case, also an IndianBand under the Indian Act, had set up a Negotiation Office which has as a “central purpose” the “negotiation of sophisticated commercialarrangements with other parties” (Fox Lake Cree Nation, at para 31).

The First Nation was challenging the Code’s constitutionalapplicability to the unjust dismissal complaint filed by an employee of the Negotiation Office. The First Nation took the position that theNegotiation Office was a separate and distinct operation from the Band’s general administration and that the employee in question wasnot an employee of the First Nation generally, but of the Negotiation Office as a discrete unit. That position prevailed.

In grating theFirst Nation’s judicial review application, Justice Zinn held that the Negotiation Office was not vital or integral to the First Nation’soperations as an Indian Band (Fox Lake Cree Nation, at para 36-38). Therefore, contrary to Francis and to the situation in the presentcase, Fox Lake Cree Nation was concerned with a discrete unit separate and distinct from the Band’s general administration and centralgovernance function and is, as a result, distinguishable. [50] Finally, I do not believe that the Nation’s assertion that it has an inherent authority to govern recognized by

section 35 of theConstitution Act 1982 and that, as a result, it is not subject to the regulation of federal laws such as the Indian Act, has any bearing on theoutcome of this case. As both the Attorney General and Ms Flewelling correctly point out, such a right to self-government, in order to belegally enforceable, needs to emanate from either a negotiated self-government agreement with the government of Canada or a judicialdeclaration.

When it is asserted in litigation, it needs, as any other kind of Aboriginal right, to be characterized in context and withsufficient specificity to allow a court to identify a practice, custom or tradition that is integral to the distinctive culture of the First Nationasserting that right (R v Van der Peet, (SCC), [1996] 2 SCR 507, at para 46; R v Pamajewon, (SCC),[1996] 2 SCR 821, at para 24). [51] Here, the Nation adduced no evidence that could support a finding of such an inherent right to govern and certainly noevidence that its claim in this respect meets the test established in Van der Peet, above.

Although First Nations do not owe theirexistence to the Indian Act or any other statute and that an Indian Band is more than a creature of statute, they nevertheless constituteentities that, as Bands and Councils, are regulated by the Indian Act and exercise powers in accordance with that Act (Perron v Canada(Attorney General), [2003] 3 CNLR 198 at para 22; Jack Woodward, Q.C., Native Law, vol 1, looseleaf, Toronto, Carswell, 2007 at 1-420). [52] It is trite law that Bands have statutory obligations under the Indian Act that ensure their political and financial accountability,both to their members and to the federal government (Ardoch Algonquin First Nation & Allies v Ontario, (ON CA),[1997] OJ No 2313 (QL), at para 7; Cynthia Kynebush v Pheasant Rump Nakota First Nation et al, 2014 FC 1247 at para 44).

It is alsoclear that the Indian Act applies whether the Band Council is elected through the process prescribed by it pursuant to

section 74 orthrough customary elections which are recognized by that Act (see the definition of “council of the band” in subsection 2(1) of theIndian Act; Mohawk of Kanesatake v Mohawk of Kanesatake (Council), 2003 FCT 115 , [2003] 4 FC 1133, 227 FTR 161, atpara 13). This is no different whether the Band Council seldomly uses its authority to pass by-laws. It remains an entity deriving itsauthority from the Indian Act. [53] There is no doubt that the aboriginal right to self-government, as recognized by the Constitution, can be asserted - but not inthis case.

It has neither been established nor asserted before the Adjudicator. Therefore, the Nation’s argument that its governanceauthority is not delegated from Parliament but rather, stems from its constitutionally protected right to self-govern must fail. [54] In sum, Francis is still good law. It was binding on the Adjudicator as it is on this Court. As it is dispositive of the presentmatter, the Attorney General and Ms Flewelling’s judicial review applications are granted and costs are awarded against the Nation inboth cases. The present Judgment and Reasons will be filed in both dockets T-1030-13 and T-1043-13.

JUDGMENT THIS COURT’S JUDGMENT is that: 1. The application for judicial review is granted. 2. The decision of the Adjudicator dated May 10, 2013, is quashed.

3. The matter is referred back to the Adjudicator for determination of the unjust dismissal complaint filed by the Applicant in Court docket T-1030-13. 4. Costs are awarded against the Respondent. "René LeBlanc" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1043-13 STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA v MUNSEE-DELAWARE NATION, CRYSTAL FLEWELLING AND DOCKET: T-1030-13 STYLE OF CAUSE: CRYSTAL FLEWELLING v MUNSEE-DELAWARE NATION, THE ATTORNEY GENERAL OF CANADA, THE ATTORNEY GENERAL OF ONTARIO PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: September 23, 2014 JUDGMENT AND REASONS: LEBLANC J.

DATED: MARCH 23, 2015 APPEARANCES : Roy Lee For The applicant (t-1043-13) For The Respondent (T-1030-13) a ttorney General of Canada Cynthia Mackenzie For The RESPONDENT (t-1043-13) For The APPLICANT (T-1030-13) Crystal Flewelling Brian Daly For The Respondent Munsee-Delaware Nation SOLICITORS OF RECORD : William F.

Pentney Deputy Attorney General of Canada Toronto, Ontario For The applicant (t-1043-13) For The Respondent (T-1030-13) a ttorney General of Canada Cynthia Mackenzie Mackenzie & Mackenzie London, Ontario For The RESPONDENT (t-1043-13) For The APPLICANT (T-1030-13) Crystal Flewelling Brian Daly McKenzie Lake Lawyers LLP London, Ontario For The Respondent Munsee-Delaware Nation